Overregulated America

The law—all 100 million words of it—stands between President Obama and his capacity to act. By Philip Howard; Remember the wonderful idea, not many weeks ago, of using stimulus money for a Green Revolution? Two birds with one stone: We could stimulate the economy and provide environmental leadership for the rest of the world. Transmission lines would carry energy from remote wind farms to our urban centers; transponders along arterial roads would allow “user charges” to discourage driving in peak times and eliminate traffic jams; and new mass transit would begin to provide commuting alternatives.

FDR couldn’t have built a stone wall in Yosemite, much less the dams of the TVA, under today’s legal regime.

This hopeful vision—shared by most Americans—then crashed into the massive barrier called federal law. Experts say it will take 10 years even to get started with a new transmission line. Mandated environmental reviews have evolved into multi-thousand page analyses of virtually every pebble that might be disturbed—followed by litigation in federal court by any person or group that doesn’t like the project. After (or if) that is completed, procurement laws require a multi-year process for any project of any size—followed by litigation “protests” by any losing contractor.

In the year 2020, after final approvals, work can begin. The project will cost 50% to 100% more than a comparable private project, however, because of a warehouse stuffed full of federal freebies designed to benefit one group or another. For example, the Davis-Bacon Act, signed into law by President Herbert Hoover in 1931, mandates wages that are, on average, about 25% higher than the market.

America has a crumbling, outdated infrastructure—and can’t fix it because America has a massive, outdated legal infrastructure. Decade after decade, Congress has poured layers of legal concrete onto the machinery of government ...